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PETITIONER: SURINDER KUMAR

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       18/11/1998

BENCH: M.K. MUKHERJEE, G.B. PATTANAIK, S.P. KURDUKAR.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T M.K. MUKHERJEE. J. This  appeal  is  directed  against the judgment and order dated December 10, 1996 of the High Court of Punjab  & Haryana in  Criminal Appeal No.  281 DB/94 whereby it upheld the conviction  of  the  appellant  under  Section  120B/302 I.P.C.   Facts  relevant  for  disposal of the appeal are as under : In  the morning of June 28, 1992 one Harvinder Singh (since dead), who was a resident of village Sidhupur, within the jurisdiction of Lohian Police Station, found Vijay  Pal, a  doctor  attached  to Veterinary Hospital of Giddar Pindi, lying dead near his field with multiple bleeding injuries on his person.  He then rushed to the police station and lodged a report.  On receipt  thereof  S.H.O.Amrik  Singh  (O.W.10) took up investigation and went to the spot.  He held inquest upon the  dead  body  of  Dr.    Vijay  Pal  and sent it for post-mortem examination to the local hospital.   Dr.    V.K. Khullar  (P.W.1) held the examination and found twenty seven incised injuries on the person  of  the  deceased.    It  is alleged  that  5/6 days after the murder, the appellant, his two brothers Varinder Kumar  and  Narinder  Kumar,  and  one Sukhbinder Singh @ Sukha met Shangara Singh (P.W.6), who was the   Chairman  of  the  Market  Committee  of  Lohian,  and confessed that they had committed the murder.  After  making the confession they requested him to produce them before the police as  they  were  harassing  their family.  P.W.6 asked them to contact him after a day or two but heard from  them. During  the pendency of the investigation Narinder Kumar and Sukhbinder  Singh  died  and,  hence,   on   completion   of investigation, P.W.10.    submitted charge sheet against the appellant and his brother Varinder Kumar for committing  the murder of Dr.  Vijay Pal pursuant to a conspiracy hatched by all four of them. The alleged motive for the murder  was  that  a  few days  before the incident the appellant, who was earlier the Veterinary doctor of Giddar Pindi, was served with an  order of transfer  and the deceased was to replace him.  Since the appellant was reluctant to leave Giddar Pindi, he locked the gate of the hospital so that the  deceased  could  not  take

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over charge.    Finding  the  hospital  locked, the deceased joined his duties by affixing a slip on its outer  gate  and made  a  representation  to  his  senior  officers about his predicament.   A  Committee  of  three  doctors   was   then constituted  and  sent  to  ensure  that  the  charge of the hospital was handed over to the deceased.  Under  orders  of the  Committee  the  appellant  handed  over  charge  to the deceased on June 27, 1992.  At that time the  appellant  and his brother Varinder Kumar threatened the deceased with dire consequences. The accused persons denied the  accusation  levelled against them and contended that they were falsely implicated in the  case  at the instance of P.W.6 and the Police.  They asserted that they did not make any confession before P.W.6. indeed, according to them, they were arrested by the  police in  June  28, 1992 and were in their custody on the date the confession was allegedly made.   The  further  plea  of  the appellant  was  that  his  transfer and that of the deceased were on request and hence the question of  his  bearing  any grudge against the deceased did not and could not arise.  In support  of  their respective cases the prosecution examined eleven witnesses and the defence examined three. In absence of any eye  witness  to  the  murder  the prosecution  rested  its  case  upon  the  evidence  adduced relating to the extra-judicial confession made by  the  four accused persons and the motive.  Accepting that evidence the trial Courts convicted the appellant and his brother and the High  Court  dismissed  the  appeal  of  the  former,  while allowing that of the latter. Having carefully gone through the entire evidence on record,  we are unable to hold that the prosecution had been able to conclusively prove the charge levelled  against  the appellant.   Coming  first to the extra-judicial confession, we find that the evidence of P.W.6, who only testifies about it, is improbable and lacking in  credence.    It  does  not stand  to  reason  - rather it seems odd - that all the four accused persons should be seized at the same time by a  mood to approach  P.W.6  to  make  a  joint  confession.    It os significant to note that they had no particular relationship or connection with P.W.6, so as to confide in him  and  take his assistance  for  surrendering  before  the  police.   If really, they wanted to surrender - as  is  the  evidence  of P.W.6  -  we  fail to understand why instead of going to the Police they would approach him and blurt  out  a  confession before him.    Another  compelling  reason  which  makes the evidence of P.W.6 in this regard suspect is that even though he was, admittedly, close to the family of the deceased,  he did  not  disclose  the names of the accused persons to Mrs. Nirmal Pal (P.W.2), the wife of the deceased, who lived at a distance of one furlong from his house and was not aware  as to who  killed  her  husband.  His claim that he tole P.W.10 about  the  confession  on  July  5,  1992   is   also   not corroborated by  him  (P.W.10).    While on this point it is pertinent to mention that in  the  remand  application  that P.W.10  filed  on  July 10, 1992 after producing the accused before the Magistrate concerned he  did  not  disclose  that they had  made a confession before P.W.6.  Form the impugned judgment we find that when this aspect  of  the  matter  was brought  to  the notice of the High Court by the appellant’s counsel it observed that all details were not required to be given in that application.  We are unable to share the above view of the High Court for if really such a  confession  was made before  P.W.6 and told to P.W.10.  it was expected that in praying for the remand of the accused, he (P.W.10)  would refer  the same, for that was the only material on which the

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prosecution could primarily rely in  justification  of  such prayer.   For  the foregoing reasons we are unable to accept the claim of P.W.6 that the appellant and other accused made a confession of their guilt before him. That brings us  to  the  other  circumstance:    the appellant had  a  motive  to  commit the murder.  Even if we proceed on the assumption that the prosecution has succeeded in proving the same, it would not  further  its  case  -  in absence  of  proof of any other circumstance pointing to the guilt of  the  appellant.    The  evidence  adduced  by  the prosecution  in support of the motive, therefore need not be detailed and discussed. On  the  conclusions as above, we allow this appeal, set aside the conviction of the appellant  and  acquit  him. Let the appellant, who is in jail, be released forthwith.